[00:00:04] Speaker 05: Good afternoon. [00:00:12] Speaker 05: Welcome, everyone, and counsel. [00:00:15] Speaker 05: Welcome to the James Browning Courthouse here in San Francisco. [00:00:19] Speaker 05: It's a pleasure to see you. [00:00:21] Speaker 05: This is the time set for the case of United States of America versus Gomez. [00:00:27] Speaker 05: Let me just check with Judge Gould. [00:00:29] Speaker 05: Judge Gould, can you hear me? [00:00:33] Speaker 05: I can hear you. [00:00:34] Speaker 05: Okay. [00:00:35] Speaker 05: Great. [00:00:38] Speaker 05: Council, if you're ready to proceed, you may proceed. [00:00:40] Speaker 08: I am. [00:00:41] Speaker 08: Good morning or good afternoon, Your Honors. [00:00:43] Speaker 08: My name is Todd Burns. [00:00:44] Speaker 08: I represent Jesus Gomez. [00:00:47] Speaker 08: The government argues that the panel's application of the pure question of law test in this case [00:00:54] Speaker 08: conflicted with Rule 52's plain error rule and afforded Mr. Gomez relief that he would otherwise be barred from receiving under Alano's four-part test. [00:01:07] Speaker 08: That is incorrect. [00:01:08] Speaker 08: The application of pure question of law test here merely allowed the panel to do a more streamlined analysis than would otherwise be required under Alano's. [00:01:18] Speaker 10: Council, could you pull the mic a little closer to you? [00:01:20] Speaker 10: I'm not sure everyone can hear you back there. [00:01:22] Speaker 08: Sure. [00:01:24] Speaker 08: Application of the pure question of law test here merely allowed the panel to do a more streamlined analysis than it would otherwise have to do under Alano's four-part test, and that is entirely consistent with what the court did in Castillo, and it's also consistent with what the court did in its en banc opinion in Begay. [00:01:44] Speaker 08: And undertaking that more streamlined analysis does not offend Rule 52B or Alano. [00:01:51] Speaker 08: a conclusion that flows from the Supreme Court's treatment of plain error in the guidelines context. [00:01:56] Speaker 02: But isn't it just an end run around plain error? [00:01:59] Speaker 02: I mean, 51 says the rule about how you preserve a claim, and then 52 says a rule about what you do about claims that are not preserved, and it says plain error. [00:02:10] Speaker 02: So the rules don't provide for a third category. [00:02:14] Speaker 08: Well, I would suggest it's not an end run around the rule, because if you apply the pure question of law test, [00:02:21] Speaker 08: The defendant can win, as in Castillo, or the defendant can lose, as in Begay. [00:02:27] Speaker 08: It just merely allows for a more streamlined analysis. [00:02:30] Speaker 09: But what's streamlined about it, or at least one of the things that's streamlined about it, is that you don't apply Prong 2, where you ask whether the error is plain, right? [00:02:41] Speaker 09: Well, that's correct. [00:02:43] Speaker 09: So you can call it streamlined, but there's the plain error test, and then there's not applying the plain error test. [00:02:52] Speaker 09: the panel did here under our precedent, is not apply the plain error test, right? [00:02:58] Speaker 08: Well, I think my test varies from the guidelines context to generally. [00:03:04] Speaker 08: In the guidelines context, the Supreme Court has said that the plain error analysis applies differently. [00:03:10] Speaker 08: It said that in Melina Martinez, and it said that in Rosales Moreles. [00:03:14] Speaker 06: That applies more to the third and fourth prongs of the Olano test, doesn't it? [00:03:18] Speaker 06: And not really tell us whether the error is plain. [00:03:21] Speaker 08: Well, specifically, it does. [00:03:23] Speaker 08: But the framework that the Supreme Court sets out in those opinions certainly applies to whether or not the error is plain because what they've said is, look, our prior caution about affording plain error relief sparingly does not apply in the guidelines context. [00:03:40] Speaker 08: And the primary reason the court gave for that is that the balance between judicial efficiency and justice concerns is different because correcting guidelines error or sentencing error [00:03:51] Speaker 08: comes at a lot lower cost, whereas the error really cuts to the heart of liberty interest here because it could well have increased the sentence. [00:03:59] Speaker 08: So they said it's a different analysis and that's why the court came to the holding on the third and fourth prongs of plain error review. [00:04:06] Speaker 08: But it also cited a line of second circuit cases that specifically go, in coming to those holdings, that specifically go to the second prong where the second circuit has said, look, we take a more relaxed approach [00:04:19] Speaker 08: to plain air in the sentencing or in the guidelines context for the exact same reasons that the Supreme Court, I just gave you with respect to the Supreme Court, gave on the third and fourth prongs because of the reduced cost and because of liberty interests. [00:04:31] Speaker 08: And in those cases, that line of cases, there are a number of them where there was fairly complicated [00:04:37] Speaker 08: guidelines error that revolved at several step analysis and they nonetheless said you know in this context with the relaxed approach we find that the error is plain. [00:04:45] Speaker 10: Counsel, let me ask you this. [00:04:46] Speaker 10: I know you would like to stay with the pure questions of law but let's assume, arguing though, that our court finds that's no longer applicable and you have to rely on plain error. [00:04:59] Speaker 10: I would say you probably have a legitimate argument that there's some tension between our 2450A1 precedents and Borden [00:05:07] Speaker 10: But can we really say that the district court, in quotes, plainly erred and not concluding that they were irreconcilable? [00:05:13] Speaker 10: In other words, it's such a jumble. [00:05:15] Speaker 10: You're saying it's one thing, government says it's another. [00:05:18] Speaker 10: How can that be a plain error when there's so much uncertainty by your own account? [00:05:27] Speaker 10: In other words, how can your client win on the plain error concept? [00:05:31] Speaker 08: Well, I think the first [00:05:33] Speaker 10: Answer that question regarding the jumble of prior case laws that prior case law was all came from three judge panels The court is now sitting on bonk doesn't need to wait I understand that but the bottom line is when the district judge looked at it How could the district judge tell that there was plain error when there's so much confusion you yourself have articulated very well why you think Borden changed everything and [00:05:58] Speaker 10: But we have case law that says exactly the opposite. [00:06:01] Speaker 10: So there's confusion. [00:06:02] Speaker 10: And my question is, how can there be plain error? [00:06:06] Speaker 10: And if there's no plain error, if we get away from the pure questions of law, doesn't your client lose on the plain error analysis? [00:06:13] Speaker 10: Because there is no plain error. [00:06:16] Speaker 08: Well, to begin with, I would suggest, as the Supreme Court said in Henderson, that this is not a question of grading. [00:06:23] Speaker 08: the district court judge's performance. [00:06:26] Speaker 08: It's a matter of affording relief when the demands of justice and judicial integrity call for it. [00:06:32] Speaker 08: That's almost an exact quote from Henderson. [00:06:34] Speaker 02: I think Judge Smith's question is, looking at the Borden question now, it's difficult. [00:06:40] Speaker 02: So if it's a difficult and complex question that we'd have to settle, then it's not plain. [00:06:46] Speaker 08: Well, I would submit that it's not difficult. [00:06:50] Speaker 05: Particularly with the board and clarification that it is really quite clear and that you know some legal questions Maybe are more art than science, but this was published in 2021 And mr. Gomez was not sentenced until 2023 and [00:07:09] Speaker 05: I'm just curious so I didn't his counsel. [00:07:12] Speaker 05: I don't know if it was you or somebody else make these arguments Before the district court at his sentencing it because it seems like board Borden does Clarify some what the situation is regarding this crime It was not me and I can't speak to why his counsel didn't make the argument I would suggest that it that this is one of the reasons for pursuing a more relaxed approach here because if you don't correct it [00:07:38] Speaker 08: you're really creating a breeding ground for ineffective assistance of counsel cases. [00:07:42] Speaker 08: But coming back to the question regarding Borden, Borden gave some important clarification that did not exist in the case law before. [00:07:50] Speaker 08: It says there has to be targeting, the conduct has to be targeted and that it has to be something above the Model Penal Code's recklessness, that is awareness and disregarding a substantial risk that physical force will occur. [00:08:05] Speaker 08: And it did something more than that, which is it gave [00:08:09] Speaker 08: some examples of what's not enough, and particularly in the recklessness context. [00:08:13] Speaker 08: It said that a commuter who runs a red light, rushing to work, and hits a pedestrian has made physical contact, has obviously disregarded a substantial risk, but nonetheless has not directed force at another. [00:08:26] Speaker 08: He's not trained his car at the pedestrian understanding or run him over, and his conduct is not opposed to [00:08:33] Speaker 08: or directed in another. [00:08:34] Speaker 08: He does not come in with the elements. [00:08:37] Speaker 04: Let me ask you this because your time is short. [00:08:40] Speaker 04: I tend to agree with you that Borden provides some clarifications and I think that there were numerous examples given in the briefing, particularly the amicus briefing where 245 conviction can be sustained when the defendant [00:08:54] Speaker 04: didn't even know that the victims were there. [00:08:56] Speaker 04: But I go back to Judge Smith's question. [00:08:58] Speaker 04: I'm not sure that I heard an answer or understood your answer, if you attempted to answer it, which is on whether the error is plain. [00:09:08] Speaker 04: In the government sentencing memorandum submitted to the district court, the government pointed to [00:09:14] Speaker 04: a panel, albeit in an unpublished disposition, so it's persuasive, not presidential, but the government's contention is, well, Borden didn't change anything. [00:09:23] Speaker 04: The Ninth Circuit recently looked at it and said Borden didn't change. [00:09:28] Speaker 04: the question of whether 245 is a crime of violence. [00:09:33] Speaker 04: There wasn't a response from the defense that I could tell, and so the argument was really never played out in the district court. [00:09:41] Speaker 04: So I'm still struggling with the answer to the question posed by Judge Smith, which is how can the error be plain or obvious in light of the fact that [00:09:53] Speaker 04: different judges, circuit judges are going different ways. [00:09:56] Speaker 04: We had an opportunity to pass on board in an unpublished decision. [00:10:01] Speaker 04: We didn't agree with the argument that you're advancing. [00:10:05] Speaker 04: It's a good argument, and even if I'm inclined to agree with it, it doesn't answer the question of whether the error was obvious. [00:10:12] Speaker 04: How do you respond to that? [00:10:13] Speaker 08: Well, I think I'd start with where the original panel in this case started, which is [00:10:18] Speaker 08: that the panel was the same panel in Mann and Morton, there were two Ninth Circuit judges on it, didn't undertake the analysis both with respect to what more than reckless means under California law and what more than reckless means under Borden. [00:10:33] Speaker 08: And Borden said substantially more than that recklessness isn't enough. [00:10:37] Speaker 08: So they failed to undertake the analysis and then failed to come to the proper conclusion. [00:10:41] Speaker 08: So to give that non-precedential case, [00:10:46] Speaker 08: effectively precedential effect to trump the Supreme Court's controlling case law on this when it didn't even undertake the appropriate... I was on that panel. [00:10:55] Speaker 07: That is what we did. [00:10:56] Speaker 07: But we had to discretionarily apply de novo review in order to get there. [00:11:02] Speaker 07: We didn't do that on plain error analysis. [00:11:10] Speaker 07: I guess I have the same question as Judge Smith and Judge Nguyen just raised, but what do we do about all of these unpublished decisions that we have after Borden that reach an opposite outcome than what you're urging? [00:11:23] Speaker 08: Judge Thomas, I was not aware that you were on Mann and Morton. [00:11:27] Speaker 07: I'm sorry, on the original three judge panel in this case. [00:11:30] Speaker 08: Okay. [00:11:31] Speaker 08: Well, again, I think that as the panel in this case said, Mann and Morton didn't undertake the correct analysis. [00:11:37] Speaker 08: They just didn't look... Right. [00:11:39] Speaker 04: So I think the effect of your argument is that even though different judges have taken a look at it, their analysis wasn't as [00:11:48] Speaker 04: in depth as it should have been, and they got it wrong. [00:11:51] Speaker 04: But the district judge, Sue Esponte, should have gotten it right. [00:11:55] Speaker 04: Is that what you're saying? [00:11:56] Speaker 08: Well, again, I come back to Henderson. [00:11:58] Speaker 08: It's not a matter of the district judge should have Sue Esponte gotten it right. [00:12:01] Speaker 08: It's a matter of whether or not the error is playing at this point on appeal. [00:12:04] Speaker 02: Let me ask you a question about Borden, because Borden and what it says about recklessness has the line, and it puts weight on this. [00:12:13] Speaker 02: that the risk need not come anywhere close to a likelihood. [00:12:17] Speaker 02: That's in the standard that it rejects. [00:12:21] Speaker 02: But that's not true about California law because it has to be that it will probably and directly result in physical force. [00:12:28] Speaker 02: So right away there's a difference between Borden's articulation of what it rejects and California which is higher than what it rejects, at least in that respect. [00:12:38] Speaker 02: Doesn't that make this not a plain [00:12:42] Speaker 02: I mean, it's not plain to me how this applies to this somewhat unusual articulation of the elements of assault. [00:12:50] Speaker 08: Well, I would submit that Borden makes quite clear and repeats more than once that the defendant doesn't have to know that there's substantial risk, doesn't have to even know that there's any risk that force will be applied. [00:13:02] Speaker 08: And as a matter of fact, the defendant can honestly believe that force will not be applied. [00:13:05] Speaker 08: But I would also come back then to the Borden example where it says that [00:13:10] Speaker 08: The person, you know, the commuter doesn't know that he's going to hit someone, and is not targeting someone, and that's not enough. [00:13:19] Speaker 08: That doesn't fall within the elements clause. [00:13:21] Speaker 02: But California also requires that you have to know all of the facts that a reasonable person would know means that it's likely that the impact will happen. [00:13:30] Speaker 02: And that wasn't true of what Borden rejected. [00:13:34] Speaker 08: Well, in California, the amicus brief from the Federal Public Defender Office was outstanding. [00:13:39] Speaker 08: And it cited a raft of cases where the person doesn't know that the victim, as they call it, is even there and is nonetheless convicted. [00:13:48] Speaker 08: And the best ones of those were Cook, where someone's driving a car down an embankment, hits a jogger, doesn't see the person there. [00:13:56] Speaker 08: Flanagan, Drennan, doesn't see the alleged victim. [00:13:59] Speaker 08: And then there are a number of cases, too, [00:14:01] Speaker 08: the person is convicted under California law for assault, and they're actually trying to avoid contact. [00:14:06] Speaker 08: The most interesting one of those is NRA-LJ, where it's a juvenile, and they say, look, it doesn't matter that he's trying to avoid contact. [00:14:14] Speaker 08: This conviction under this statute does not require targeting. [00:14:18] Speaker 08: That's the exact word that they use. [00:14:20] Speaker 08: So I think both by how, you know, I realize in the California case law, it's somewhat convoluted at times, but it is not convoluted when it says, [00:14:28] Speaker 08: that the defendant doesn't have to be aware of substantial risk and honestly can believe force will not be applied. [00:14:35] Speaker 10: But see, that's the very problem that I have. [00:14:38] Speaker 10: You did a very nice job in your brief laying out these cases. [00:14:42] Speaker 10: Some of my colleagues have referred to them. [00:14:44] Speaker 10: But the question was, at the time the district judge looked at this, was the airplane [00:14:50] Speaker 10: You've done an excellent job of arguing post-decision on the part of the district judge why it was plain, but you had all these voices saying, no, no, no, no, it's something else. [00:15:01] Speaker 10: What about this case? [00:15:02] Speaker 10: What about that case? [00:15:03] Speaker 10: All of which is perfectly legitimate, but it doesn't mean that at the time the district judge made the decision that it was plain. [00:15:11] Speaker 10: Plain error, the district judge should be able to look at this and say, boy, I got it wrong because the law is X. And you're saying, no, no, it's not X, it's Y. Somebody else says it's Q. Somebody else says it's X. That's not plain. [00:15:24] Speaker 10: And that's what I struggle with is for your client, if we do away with the pure questions of law, how can we treat what the district judge had in front of him [00:15:35] Speaker 10: as plain error. [00:15:38] Speaker 10: Even to this day, you're articulating why, based on California law, it's something different than perhaps what the district judge said. [00:15:45] Speaker 10: My understanding of plain error is different than yours because I think it's got to be really, really obvious and I don't think it was given Borden and the other issues that have been brought up by the court today. [00:15:57] Speaker 08: I think the best answer to your question, Judge Smith, is to come back to the fact that this is guidelines error. [00:16:02] Speaker 08: And the Supreme Court applies plain error differently in the guidelines context. [00:16:08] Speaker 08: Because plain error, the whole concept grew out of how to deal with trial error. [00:16:12] Speaker 08: When the plain error rule was promulgated in 1944, the guidelines didn't exist to the extent there were any sentencing appeals that were very different. [00:16:20] Speaker 08: And the Supreme Court has recognized that and said that the guidelines error is different. [00:16:26] Speaker 08: The calculus between the cost of correcting it and the liberty interest is different. [00:16:31] Speaker 10: But with respect, counsel, at least my understanding is that whether it's part of the guidelines or the earlier definitions that the Supreme Court gave of plain error, you've still got to have something that's really obvious. [00:16:44] Speaker 10: And that's what I struggle with here. [00:16:45] Speaker 10: I don't think it is really obvious. [00:16:47] Speaker 10: For all the reasons that you've well articulated, [00:16:50] Speaker 10: There are lots of reasons why, if this were a new issue, it might be different. [00:16:57] Speaker 10: But at the time that the district judge had it, it wasn't plain, at least based on my understanding of what plain error is. [00:17:05] Speaker 10: What am I missing? [00:17:09] Speaker 08: I would submit that if it is purely legal error and the court has concluded in a binding or to be binding opinion that it is error, then that becomes beyond dispute. [00:17:22] Speaker 08: That is the law. [00:17:23] Speaker 10: And what was the case? [00:17:25] Speaker 10: As a matter of fact, the cases at the time, we had, I don't remember how many, I think one or two presidential cases, a number of non-precedential cases that had specifically found that the factual circumstances of your client did fit [00:17:39] Speaker 10: the category and it was not a problem, right? [00:17:43] Speaker 08: There was pre-broadened case law that held that 245A was a crime of violence. [00:17:48] Speaker 10: Correct. [00:17:48] Speaker 10: So if there wasn't error, it would have been on your side basically. [00:17:53] Speaker 10: But again, I don't think the Supreme Court or our court has said basically that plain error means that [00:18:01] Speaker 10: Yeah, you got a few problems here, a few problems there. [00:18:03] Speaker 10: We don't really know what the law is or can still be plain air. [00:18:06] Speaker 10: I don't think that's right. [00:18:07] Speaker 10: It has to be clear. [00:18:10] Speaker 10: This is the law. [00:18:10] Speaker 10: And if the district court does something different than that, then you got plain air. [00:18:15] Speaker 10: But I don't think you have that here, do you? [00:18:17] Speaker 08: Well, I believe that I do. [00:18:19] Speaker 08: And I believe particularly because it's in the guideline context. [00:18:22] Speaker 08: And if the court is, if your honor isn't convinced based on Melina Martinez and Morelis Rosales, [00:18:28] Speaker 08: If this court comes to contrary conclusion, the court's approach and outcome will conflict with the Second Circuit cases, which... That's a different circuit. [00:18:39] Speaker 03: So, counsel, let me ask you this. [00:18:41] Speaker 03: What in your mind is the controlling authority on point for you here to say that there was plain error? [00:18:49] Speaker 08: I think the Supreme Court cases I've cited in their approval, their citing approvingly the Second Circuit cases, [00:18:57] Speaker 08: And also, as a follow-on to my answer to Judge Smith, if this court decides that the error here is not plain, it will also be in direct conflict with the 10th Circuit's recent Shodan opinion, which applied plain error review and found that the error was plain. [00:19:14] Speaker 06: And along the same lines of what I was saying, too, the Supreme Court... Is there any daylight between clearly irreconcilable and plain error? [00:19:22] Speaker 08: I don't think there is, and that is, of course, one of the things I argued in my response in opposition to the petition. [00:19:26] Speaker 08: The panel did a very nice job of explaining why its prior case law, its prior binding case law, published case law, was clearly irreconcilable. [00:19:37] Speaker 06: But if clearly irreconcilable is subject to reasonable dispute, does that affect your plain error analysis? [00:19:47] Speaker 08: I guess it seems to me the easy answer to that is if you find [00:19:51] Speaker 08: that Supreme Court case law is clearly irreconcilable with Ninth Circuit case law, you have decided the issue. [00:19:59] Speaker 08: And it becomes, at that point, beyond dispute. [00:20:01] Speaker 08: Someone can dispute it in a petition for writ of certiorari or whatever. [00:20:04] Speaker 08: But at that point, it is decided. [00:20:06] Speaker 08: And it is a legal error. [00:20:08] Speaker 08: And it's not just a legal error, but it guidelines error. [00:20:11] Speaker 08: And the Supreme Court [00:20:13] Speaker 08: It's indicated it treats those differently. [00:20:16] Speaker 06: And under Henderson, we look at plain error at the time of appellate consideration, right? [00:20:21] Speaker 08: That's correct. [00:20:22] Speaker 06: So would that at all affect your thinking about this as opposed to when the district judge considered it? [00:20:28] Speaker 08: Well, I think that was part of my answer to Judge Smith, which is Henderson says, look, this isn't a grading system for district court judges. [00:20:37] Speaker 08: I can quote it exactly. [00:20:40] Speaker 08: Johnson makes clear that Plain Air Review is not a grading system for trial judges. [00:20:44] Speaker 08: It has broader purposes, including, in part, allowing courts' appeals better to identify those instances in which the application of new rule of law to cases on appeal will meet the demands of fairness and judicial integrity. [00:20:54] Speaker 08: So if it meets the third and fourth prong, that relief should be granted. [00:20:57] Speaker 08: And then the court goes on to respond to the government's assertion that, well, if that's how you treat Plain Air, then all error will become Plain Air. [00:21:05] Speaker 08: And the opinion says, [00:21:07] Speaker 08: It rejects that and it says many such new rules that we pointed out concern matters of degree, not kind. [00:21:13] Speaker 08: And a lower court ruling about such matters say the nature of closing argument, even if now wrong, is not necessarily plainly wrong. [00:21:19] Speaker 08: And I think that points to an important distinction between pure legal error [00:21:24] Speaker 08: and mixed questions of law and fact, which is illegal air, you know, courts decide in the first instance what the law is, and then when they decide it, that's what the law is. [00:21:31] Speaker 08: I mean, we all count on that. [00:21:33] Speaker 08: Now, a mixed question of law and fact has more of a range of decisions in the usual preserved air context that relies on abusive discretion standard. [00:21:42] Speaker 08: The test may be to be applied, say, to a 403 balancing situation, might be fixed law, but how the district court applies it has a potential range [00:21:51] Speaker 08: of answers. [00:21:52] Speaker 08: And in that context, it's much harder to make the plain error showing. [00:21:57] Speaker 08: But if it's just a legal question, particularly in the guidelines context. [00:22:00] Speaker 02: Some legal questions are very difficult to answer, and the answer isn't plain before it's resolved. [00:22:08] Speaker 08: But once it is resolved, they are. [00:22:09] Speaker 02: But it's not resolved. [00:22:10] Speaker 02: We would have to resolve it here. [00:22:13] Speaker 08: Yes. [00:22:13] Speaker 02: And looking at this question, it doesn't look very plain. [00:22:16] Speaker 02: It would be a lot of work to figure out the right answer. [00:22:20] Speaker 08: Well, I would submit, particularly if you look at the example with respect to recklessness, which is not enough that's given in Borden, and you compare it to all those cases cited in the meekest brief where the person doesn't know the alleged victim is even present. [00:22:35] Speaker 08: or the person is deliberately trying to avoid making contact with the victim. [00:22:39] Speaker 08: This is a Venn diagram where there is a huge area that does not overlap. [00:22:46] Speaker 02: But the only binding holding from Borden is that the kind of recklessness that it describes is not sufficient to be a crime of violence. [00:22:59] Speaker 08: I don't think that's correct, Your Honor, with all due respect. [00:23:02] Speaker 02: There's no overlap. [00:23:03] Speaker 02: No overlap whatsoever between the rationale of the plurality and Justice Thomas. [00:23:07] Speaker 02: So we can't look for the overlap and then reason from it. [00:23:10] Speaker 02: We don't have any common reason between the two of them. [00:23:13] Speaker 08: Well, I think as the government has conceded, Justice Thomas would take a more narrow approach to what could qualify as a crime of violence. [00:23:20] Speaker 08: So if you're looking at the commonality, it's the plurality opinion. [00:23:24] Speaker 08: And I think this court has accepted the plurality opinion as being controlling. [00:23:31] Speaker 09: You've mentioned Henderson a number of times and the rule that plainness is assessed at the time of appellate consideration, but you're not suggesting that it's assessed after the appellate court writes its opinion resolving the legal issue, are you? [00:23:47] Speaker 08: Well, I think if it's a purely legal issue and the court determines in the context of deciding is there error, here's the persuasive arguments from unpublished opinions, law review articles, whatever source, and then decides. [00:24:02] Speaker 09: But then, I mean, whether it's legal or factual, I mean, in the normal course, a court applying plain error goes through prong one, and it gets to prong one, and maybe it says there's no error, and then you're done. [00:24:15] Speaker 09: But usually, I mean, [00:24:17] Speaker 09: in the case where this is going to matter, you get to the end of prong one and you say, you know, therefore we determined that there was an error. [00:24:22] Speaker 09: Now we turn to prong two. [00:24:26] Speaker 09: And I guess the way you read Henderson, it sounds like at that point, well, we just said there was an error. [00:24:31] Speaker 09: What could be plainer than that? [00:24:32] Speaker 09: Like, therefore you always get past prong two, but that's not how it works, is it? [00:24:36] Speaker 08: Well, I think that Henderson indicates, suggests that it does work that way, but then I think [00:24:43] Speaker 08: it to the extent that the court has concern about that that's when i would focus in on the guidelines context and say [00:24:49] Speaker 08: is the Second Circuit's approach, as the Supreme Court seems to have agreed with, a more relaxed approach to addressing error in this context, if it is a purely legal error to say, well, geez, it was hard to figure out that it was a purely legal error, doesn't seem to be an adequate reason under the Supreme Court's case law in this context to just say, well, we're not going to correct it. [00:25:13] Speaker 08: And an interesting point in that context is those Supreme Court cases, one of the things that they said, too, is in this context, [00:25:19] Speaker 08: We think that the prospect of sandbagging by the defense is so minimal as to be vanishing. [00:25:26] Speaker 08: And there is an independent duty on the part of the district court judge to get the guidelines correct. [00:25:33] Speaker 08: That is, at bottom, the district court judge's obligation. [00:25:36] Speaker 08: So those are additional factors that they relied on in this context to say that we shouldn't take such a strict view of the plain error review in the guidelines or in the sentencing context. [00:25:50] Speaker 10: What difference do the guidelines make? [00:25:52] Speaker 10: I understand in our post... [00:25:56] Speaker 10: plane review analysis as I look at it. [00:25:58] Speaker 10: There's lots to consider the guidelines board and all these other things. [00:26:03] Speaker 10: But I still get back to the fact did the district judge know or should have known at the time the decision was made that this was just absolutely right on. [00:26:12] Speaker 10: This is what the law was. [00:26:15] Speaker 10: I don't see it. [00:26:16] Speaker 10: I really don't see it. [00:26:17] Speaker 10: If there was a case from California that said this is what it was. [00:26:20] Speaker 10: I get it. [00:26:22] Speaker 10: But at the time [00:26:24] Speaker 10: Wasn't clear. [00:26:25] Speaker 10: It's not clear now. [00:26:26] Speaker 10: You've articulated these various views. [00:26:29] Speaker 10: I'm still struggling with the fact that where's the plain air at the time the district judge made the decision? [00:26:35] Speaker 08: But at the risk of maybe being redundant, I would say the difference in the guidelines context is that the Supreme Court has said the guidelines context is different. [00:26:44] Speaker 08: And, and, and your case for that Molina Martinez. [00:26:49] Speaker 08: and Morelle's Rosales. [00:26:51] Speaker 08: So there's the 2016-2018 Supreme Court cases which deal with the third and fourth prong of Plain Air Review. [00:26:57] Speaker 08: And then interestingly, the only three Supreme Court cases that deal with Plain Air in the sentencing context, the third one is Henderson, which came a couple years before that. [00:27:06] Speaker 06: All suggest... But what says that you can use a third and fourth prong factor to decide the second prong? [00:27:14] Speaker 06: What support do you have for that? [00:27:16] Speaker 08: Again, I just think it's the framework and the reasoning in those two cases, that the balance is different here, the likelihood of sandbagging is different here, the cost of correcting at the liberty interests at stake, the fact that they cite the Second Circuit approach approvingly. [00:27:31] Speaker 08: I think that are those cases directly on point on the second prong of Alano? [00:27:38] Speaker 08: No. [00:27:38] Speaker 08: But is the reasoning unassailable? [00:27:41] Speaker 08: In my view, it is. [00:27:43] Speaker 10: Well, you're very lucky that you're in California because Section 3537 of the Civil Code says, and I quote, superfluity does not vitiate. [00:27:52] Speaker 10: So you can take that one and work with it. [00:27:56] Speaker 08: I'll have to mull that one over. [00:27:57] Speaker 08: I'll reserve the rest of my time. [00:27:58] Speaker 05: Thank you. [00:28:08] Speaker 01: Good afternoon, Your Honors. [00:28:09] Speaker 01: May it please the Court. [00:28:10] Speaker 01: Alexander Robbins on behalf of the United States. [00:28:15] Speaker 01: The most straightforward way to decide this case is by applying the Plain Air Rule. [00:28:20] Speaker 01: And the most straightforward argument that the government has is that Judge Graeber, in her concurring opinion in Zhao, got this issue exactly right, identified the problems with this exception, and that is what we are asking the Court to rule on primarily today. [00:28:38] Speaker 01: suggest that there was any plain error one way or the other in the panel's decision. [00:28:43] Speaker 01: And I'm happy to address the crime of violence categorical approach issue at length. [00:28:47] Speaker 01: But I don't think it's a reasonable contention that the panel in this case plainly, clearly, obviously erred. [00:28:55] Speaker 01: Nor is it a reasonable contention that the government's position in this case was plain, clear, or obvious error. [00:29:01] Speaker 01: And that's the function of the plain error rule. [00:29:04] Speaker 01: It is to winnow down the range [00:29:06] Speaker 01: of what a three-judge panel in a future case, taking its guidance from this court today on what the rule is supposed to be, what that three-judge panel has to deal with, how deep a dive it has to go into the record, into the law for judicial efficiency and the administration of justice in all the future cases in this circuit. [00:29:25] Speaker 05: I guess I'd like to ask, even after Borden, which was decided before the sentencing in this case, you don't [00:29:36] Speaker 05: What's your position on whether Borden clarifies sufficiently this dispute? [00:29:44] Speaker 01: Our position is I would refer the court to footnote two of Borden itself, where the Supreme Court lays out the circuit split that it's addressing and resolving, specifically identifies [00:29:56] Speaker 01: not just this circuit as being on the correct side of the split, but actually cites the panel decision in Begay as the decision where the Supreme Court says that's the correct answer and that's the way the court ultimately came out. [00:30:10] Speaker 01: Borden is, with one exception, completely consistent with this court's longstanding case law going back to Fernandez Ruiz in its treatment of the distinction between purposeful and knowing conduct on one hand, [00:30:25] Speaker 01: and reckless conduct on the other as falling below the line for crimes of violence. [00:30:29] Speaker 01: The only exception is that Borden actually expanded the scope a little bit because Fernandez Ruiz said reckless conduct never qualifies. [00:30:38] Speaker 01: Borden said normal, ordinary recklessness, model penal code recklessness does not qualify. [00:30:44] Speaker 01: But we reserve the option in a future case maybe depraved heart extreme recklessness might qualify. [00:30:51] Speaker 01: And that's the door that this court walked through in Begay. [00:30:54] Speaker 01: I think as an example, I find it helpful to think of examples of these cases. [00:30:58] Speaker 01: Everyone agrees that drunk driving as a crime of recklessness is not a crime of violence. [00:31:05] Speaker 01: That was the main issue, the oral argument in Borden, and this court discussed the neural argument in Begay. [00:31:10] Speaker 01: Drunk driving, as dangerous and bad as it is, is not a crime of violence because it's not force directed against anyone. [00:31:16] Speaker 01: By contrast, in Begay, [00:31:18] Speaker 01: At the end of the opinion in Begay, this court identified driving drunk the wrong way down a crowded thoroughfare as an extreme recklessness example that would meet the standard. [00:31:32] Speaker 01: And just going back to the logic of boredom, it's easy to see why. [00:31:35] Speaker 01: Because in that second case, there are potential victims driving into a crowd, shooting into a crowd, [00:31:42] Speaker 01: is not the same as driving recklessly or firing a gun into the air. [00:31:46] Speaker 01: There's an oppositional nature, as Borden says, a directedness or a targetedness to the use of force. [00:31:53] Speaker 01: So Borden didn't change this court's case law, and that's our view on the merits. [00:31:58] Speaker 05: I just wanted to find out your view. [00:32:00] Speaker 05: Does Borden's targeting requirement change the way we apply the categorical test in a section 245A1 case? [00:32:09] Speaker 01: I'm sorry, I may miss the first part of your question. [00:32:11] Speaker 05: Does Borden's targeting requirement, or do you think there is a targeting requirement in the Borden? [00:32:18] Speaker 01: Absolutely. [00:32:18] Speaker 01: Okay. [00:32:19] Speaker 05: So does that change the way we apply the categorical test in a section 245A1 case? [00:32:27] Speaker 01: Not at all, because this court was on the same page with Borden at least 15 years earlier. [00:32:32] Speaker 01: in Fernandez Ruiz, including some of the same logic of Borden, they discussed Leocal as the classic negligence case of something that doesn't satisfy the oppositional targeted nature of the requirement. [00:32:44] Speaker 00: What do we do with the California cases, though, that say you don't need to target to be convicted? [00:32:50] Speaker 01: I respectfully disagree with the premise of the defense argument on that point. [00:32:55] Speaker 01: So I have two responses. [00:32:56] Speaker 00: So you read the California cases differently? [00:32:58] Speaker 01: I read the California cases as requiring, in particular Williams, as we set forth in our petition, as requiring purposeful or knowing conduct within the terminologies that's used in the model penal code. [00:33:10] Speaker 01: To the extent that California law has this admitted peculiarity of discussing the natural and probable direct consequences of one's action, that is, first of all, not [00:33:23] Speaker 01: That's not the same thing as adjusting the mens rea below the knowing and purposeful standard. [00:33:28] Speaker 01: But second, it's an issue that this court, and actually the Supreme Court, have dealt with years ago. [00:33:34] Speaker 01: Vasquez-Gonzalez deals with this specific issue. [00:33:37] Speaker 01: If you look at 1067 in Vasquez-Gonzalez, it discusses Judge Clifton's decision, discusses the probabilistic language in the California cases, and in Williams in particular. [00:33:50] Speaker 01: and rejects the very argument that the defense is making in this case. [00:33:54] Speaker 01: So even if I were wrong about my read as a federal practitioner, even if I were wrong about California law, it's an issue this court has already decided. [00:34:03] Speaker 06: But in footnote four of Williams, it says, in stating that reckless conduct cannot constitute an assault, citing Colin Tuono, it says, Colin Tuono meant reckless in its historical sense as a synonym for criminal negligence rather than its more modern conception as a subjective appreciation of the risk of harm to another. [00:34:24] Speaker 06: So that is specifically saying the targeting that our chief just referenced [00:34:29] Speaker 01: I appreciate the loose language in Williams, and I would respond with two places for the court to look. [00:34:34] Speaker 06: That looks pretty specific and not loose to me. [00:34:42] Speaker 01: I would refer the court to two things. [00:34:44] Speaker 01: First of all, our petition for rehearing, I believe on page 17, and I think this is the key with respect error in the panel decision, was conflating the intent [00:34:58] Speaker 01: to do the act with the intent to cause harm. [00:35:04] Speaker 01: And as Justice Kagan's opinion in Borden lays out, that's the difference between purpose and knowledge. [00:35:10] Speaker 01: And so in particular, this Wyatt case, the California case that the Gomez panel discussed. [00:35:15] Speaker 01: In Wyatt, the defendant intentionally hit his young son, his toddler, I think. [00:35:22] Speaker 01: But at least his claim was, or maybe the government couldn't prove, that he intended to cause injury to, to cause harm [00:35:29] Speaker 01: to his son. [00:35:30] Speaker 01: That is still intentional violent conduct under Borden, under the model penal code, under this court's decision in Fernandez Ruiz. [00:35:38] Speaker 01: It's the distinction between knowledge and purpose. [00:35:41] Speaker 01: And if you go back to the original crime of violence case, Johnson, not the plain error one, but the crime of violence one, force means offensive physical contact capable of producing bodily harm. [00:35:53] Speaker 01: The thing that needs to be intentional is hitting your son. [00:35:56] Speaker 01: not trying to cause harm to him. [00:35:58] Speaker 09: What about the California Court of Appeal decision in LJ where I think they said he was trying to drive around the car and he ran into the car unintentionally, but that was enough for assault? [00:36:10] Speaker 01: I don't have a good response to all the California Court of Appeals decisions other than to say that they correctly identify this ambiguity in Williams and that Williams, first, is the binding case that this court needs to take from the state of California. [00:36:25] Speaker 01: And second, and this is the second point I didn't get to and I apologize, Vazquez-Gonzalez expressly addresses this issue. [00:36:34] Speaker 01: This court, this is not a new question before this court, what to do with Williams. [00:36:38] Speaker 01: Vazquez-Gonzalez on page 1067 [00:36:41] Speaker 01: says, Vasquez argues that 245A1 can be satisfied by negligent and therefore unintentional conduct. [00:36:49] Speaker 01: There, however, we disagree. [00:36:50] Speaker 01: Section 245A1 is an assault statute, and the Supreme Court of California has expressly stated that the mens rea for assault in California requires more than negligent conduct. [00:37:00] Speaker 01: Quote, mere recklessness or criminal negligence is still not enough. [00:37:05] Speaker 01: That's quoting from Williams. [00:37:07] Speaker 01: And then the court goes on to say in the next page that [00:37:11] Speaker 01: Vasquez seizes on language regarding probability used by the California Supreme Court in Williams. [00:37:16] Speaker 01: For example, the court explained that assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably indirectly result in the application of physical force. [00:37:28] Speaker 01: According to Vasquez, this probabilistic language defines a negligence mens rea, and the court then goes on to explain why that's not true. [00:37:35] Speaker 06: So the Tenth Circuit, relying on Williams, found that there was not a categorical match. [00:37:40] Speaker 06: So are you encouraging us to create a circuit split or maintain a circuit split? [00:37:45] Speaker 01: I think the maintain a circuit split. [00:37:47] Speaker 01: The Tenth Circuit's in [00:37:49] Speaker 01: Joden is just wrong for the reasons that we have given in our brief. [00:37:55] Speaker 01: But also, as we point out in our 28 jail letter, there was no meaningful application, or really any textual application at all, of prong to a plain error in the 10th Circuit's decision. [00:38:04] Speaker 01: They said the phrase prong to in a heading and then never actually addressed it. [00:38:09] Speaker 01: I think it is very, I'm very confident, in at least this much of the government's argument, that there is no way that a reasonable jurist [00:38:17] Speaker 01: could look at this merits issue and think that it's clear obvious one way or another. [00:38:22] Speaker 01: Obviously, that's up to your owners. [00:38:24] Speaker 06: If we were to find clearly irreconcilable based on Borden, Castillo, which your opposing counsel cited, says that, well, if there's Supreme Court case that is clearly irreconcilable with our precedent, [00:38:40] Speaker 06: then that's error under either a plain error standard or a de novo standard. [00:38:45] Speaker 06: So why shouldn't we follow Castillo here if we think that Borden is clearly irreconcilable with our precedent? [00:38:53] Speaker 01: I'm very glad you asked that because I had a note to address this issue that came up in my opposing council. [00:39:00] Speaker 01: I think the premise is wrong that if you have the Miller v. Ganey standard on one hand, which requires clear irreconcilability, [00:39:08] Speaker 01: And then you have prong two of the plain error standard that also requires clear obvious error, that those become the same, and so it doesn't make any difference. [00:39:17] Speaker 01: I think as a logical matter, if you have two different threshold standards to pass, it would be clear squared, not just the same. [00:39:26] Speaker 01: And as a legal matter, in the most analogous case I can think of in the habeas context, the Supreme Court has repeatedly said that there's a doubly deferential standard. [00:39:34] Speaker 01: When you're looking at one deferential standard, for example, an IAC claim, [00:39:37] Speaker 01: through the lens of a second differential standard, such as review of state court decisions. [00:39:43] Speaker 01: So you would need to satisfy both of those. [00:39:45] Speaker 01: It would need to be clearly clear to the extent that that has additional meaning. [00:39:50] Speaker 01: It's harder for the defense to meet that burden. [00:39:53] Speaker 01: And even if we get to that point, Judge Koh, that means we're applying the Plain Air Rule, which I do want to come back to because that is the primary issue here that the government is seeking en banc review of. [00:40:04] Speaker 01: We understand [00:40:05] Speaker 01: that your honors have to fly from all the different locations in the circuit to be here to meet for an en banc court. [00:40:11] Speaker 01: It's not the job of the en banc court even to do justice in an individual case. [00:40:16] Speaker 01: That's the district court primarily as supervised by a three-judge panel. [00:40:20] Speaker 01: This court, we ask to make a rule that is the right rule and a fair rule for all future cases in the circuit so that three-judge panels know what the rules are and so that litigants in district [00:40:32] Speaker 01: know what the rules are. [00:40:33] Speaker 10: And as a matter of... Can I follow up on one thing that we've been focusing on plain error with good reason? [00:40:38] Speaker 10: I assume it's the government's position that you would like us to overrule our, in quotes, pure question of law exception? [00:40:45] Speaker 01: Yes, and that's what I was getting at. [00:40:46] Speaker 01: Our primary reason to be here today and our primary ask of this court is we think this is a case where without conceding whether it would have made a difference or not in Castillo, if the court at least said it wouldn't have made a difference in Castillo, [00:41:01] Speaker 01: This is a case where, very clearly, application, vel non, of the plain error test makes a difference. [00:41:09] Speaker 01: And the reasons Judge Graber gave in Zhao, and based on three main factors, this court should overrule its pure question of law exception. [00:41:18] Speaker 01: It's inconsistent with the text. [00:41:19] Speaker 01: It's inconsistent with Supreme Court precedent. [00:41:21] Speaker 01: And frankly, it's unfair. [00:41:23] Speaker 01: It's not a just administration of the laws. [00:41:25] Speaker 01: So starting with text. [00:41:27] Speaker 01: Rule 52B is a rule. [00:41:29] Speaker 01: It's binding in conjunction with rule 51, which generally says you don't get review unless the issue is raised. [00:41:35] Speaker 01: It's a binding rule that this court should follow. [00:41:37] Speaker 01: There's been no textual defense of this pure question of law exception that I've seen ever, anywhere, from a law review article, from a separate opinion. [00:41:46] Speaker 01: No one has sought to give one, I think, because there isn't one to give. [00:41:49] Speaker 01: Second. [00:41:50] Speaker 06: I guess I'm still struggling with, is your position that it's not clear error to follow precedent that has been overruled by the Supreme Court? [00:42:00] Speaker 06: Is it your position that it's error, it's just not clear error, or that's what I'm still struggling with? [00:42:07] Speaker 01: Our position is not that there was clear error here. [00:42:10] Speaker 01: Our position is that the panel opinion was wrong on the merits. [00:42:15] Speaker 01: But certainly not clearly so. [00:42:16] Speaker 06: Well, I'm just giving you a hypothetical then. [00:42:18] Speaker 06: Oh, I'm sorry. [00:42:21] Speaker 06: Let's say there is a case, Castillo, let's just be hypothetical, Castillo, that if you follow precedent that's overruled by the Supreme Court, that's error. [00:42:32] Speaker 06: Would you agree with that? [00:42:33] Speaker 06: That if you follow precedent that's overruled by the Supreme Court, that's error. [00:42:37] Speaker 01: Yes, of course. [00:42:37] Speaker 01: You agree that's error. [00:42:38] Speaker 01: That's the middle of the game. [00:42:39] Speaker 06: But what flavor of error is that then? [00:42:42] Speaker 01: It depends on the precedent. [00:42:45] Speaker 01: Miller v. Gamey sets out a standard for how to do that. [00:42:49] Speaker 01: Putting aside the plain error rule, assuming all arguments are preserved, this court has a standard for how to deal with precedent that is either overruled directly or implicitly by the Supreme Court. [00:42:59] Speaker 01: That standard is Miller v. Gamey. [00:43:02] Speaker 01: No one quibbles with that standard. [00:43:04] Speaker 01: That's a separate bucket. [00:43:06] Speaker 01: That is not the same thing as the plain error test. [00:43:09] Speaker 01: You have to get through that [00:43:11] Speaker 01: and a prong to a plain error and other prongs of a plain error test in order to reverse a district court decision that followed law. [00:43:19] Speaker 02: But you would believe that if we look at an unsettled question in light of a new Supreme Court case, and we think that the application of the new Supreme Court case is a slam dunk clear answer that our prior precedent has to go, that that would meet the plain error prongs one and two? [00:43:37] Speaker 01: Yes. [00:43:37] Speaker 01: And the Supreme Court, I was going to get to my, I made my textualist argument. [00:43:40] Speaker 01: My second one was going to be, [00:43:41] Speaker 01: looking at how Supreme Court precedent has dealt with questions like this. [00:43:45] Speaker 01: So in Henderson, we cite Cotton and Johnson, not the crime and violence of the other Johnson. [00:43:52] Speaker 01: Those three cases all involved purely legal questions where the Supreme Court applied the plain error rule. [00:43:58] Speaker 01: And I think in all those cases decided that the error, based on an intervening Supreme Court decision, the error was plain. [00:44:07] Speaker 01: It satisfied Prong, too. [00:44:08] Speaker 01: The Supreme Court applied plain error and said that, well, the Supreme Court [00:44:12] Speaker 01: Tapia error, for example. [00:44:13] Speaker 01: The Supreme Court decided that you can't increase someone's punishment for the purpose of rehabilitation under 3533A. [00:44:18] Speaker 01: The Supreme Court says that very clearly, overrules most circuit precedent. [00:44:23] Speaker 01: And then the case comes up and says, yes, that's clearly irreconcilable. [00:44:28] Speaker 01: And that's plain error. [00:44:29] Speaker 01: And to get to this temporal issue Judge Cohen and Judge Smith both mentioned, we understand under Henderson, the plainness of the error is evaluated at the time of appeal. [00:44:41] Speaker 01: Um, so yes, plain error looks from the point of view of the district judge, what a competent district judge have made this mistake, but you do import the later law from the time of appeal. [00:44:51] Speaker 01: Doesn't make a difference in this case. [00:44:53] Speaker 01: Nothing happened legally between the district court proceeding in this case and the panel decision in this case. [00:44:59] Speaker 01: So yes, Henderson is there and has this temporal piece to it. [00:45:03] Speaker 04: Let me ask you this. [00:45:05] Speaker 04: You've cited to numerous cases like Vasquez, Gonzalez, and some of the other cases that really tried to match up our law with the 245 conviction. [00:45:18] Speaker 04: And I think this is the difficulty that [00:45:20] Speaker 04: judges really struggle with the categorical approach. [00:45:23] Speaker 04: We're trying to use the lingo of how state courts describe their elements and then trying to match that to the crime of violence language. [00:45:32] Speaker 04: Now, those cases that you cited all preceded Borden. [00:45:36] Speaker 04: So, you know, the three-judge panel decision in this case, I thought, did a thorough job of analyzing why that line of case law is no longer viable in light of Borden. [00:45:49] Speaker 04: whether you agree or disagree with that. [00:45:53] Speaker 04: I think that to your earlier point that the litigants could benefit from some explanation going forward, if we decide that, well, this categorical approach thing, it's hard and judges struggle with it. [00:46:06] Speaker 04: If we cast aside the de novo pure question of law exception and go with plain error review, what do we do with the fact that [00:46:14] Speaker 04: the parties could really benefit from some explanation of how Borden is reconciled or not reconcilable with the prior case law. [00:46:24] Speaker 04: But this panel, I'm trying to be very specific and very practical here. [00:46:27] Speaker 01: Look, I don't want to tell the court how to exercise this discretion. [00:46:30] Speaker 01: The government's primary quest is to, with this decision, put to rest the ill-conceived [00:46:37] Speaker 01: If the court wants to address the issue, since it's already done the work and read the briefs and understands the issue, I think this court should address the issue with respect to the panel's decision decided in the government's favor. [00:46:57] Speaker 01: for the reasons we've already discussed, that Borden didn't actually change this circuit's precedence and use the same recklessness, knowledge, purpose, model, penal code definitions that have been around for decades. [00:47:08] Speaker 01: The prior decisions are not at all inconsistent with Borden. [00:47:13] Speaker 01: In fact, the Supreme Court said it was siding with the Ninth Circuit side of the circuit split in the beginning of its opinion, where it lays out the reason it took the case on Sir Shawari. [00:47:22] Speaker 10: I gather it's the government's position that if we [00:47:25] Speaker 10: do away with the pure question of law and get to the plain error question, that our panel can decide this. [00:47:32] Speaker 10: There's no need to resend this back to the three-judge panel or, for that matter, the district court. [00:47:37] Speaker 01: Is that correct? [00:47:38] Speaker 01: I agree with that, Your Honor. [00:47:39] Speaker 01: Yes. [00:47:39] Speaker 01: Again, it's your court and it's your discretion, but that seems like it certainly has a common-sense appeal. [00:47:44] Speaker 01: It makes sense for judicial efficiency in this case. [00:47:47] Speaker 01: But I would go back to judicial efficiency in all the other cases and just get to my third reason. [00:47:53] Speaker 01: We have the text of the rule. [00:47:55] Speaker 01: We have the Supreme Court's precedent, in particular Henderson, which even though it was sort of a ruling in favor of the defense in terms of this temporal aspect of when you look at the time of decision, it said we're not opening the floodgates to infinite plain error claims here because we still have prong two. [00:48:13] Speaker 01: Henderson preserved prong two as one of the floodgates. [00:48:19] Speaker 00: There's really two bodies of law that we're looking at to decide the categorical match question, right? [00:48:24] Speaker 00: There's the federal law and then there's the California law. [00:48:27] Speaker 00: And a lot of the dispute, I think, about whether there's a categorical match has to do with how should we read California law and how the California court's been interpreting the statute. [00:48:42] Speaker 00: Under Henderson, I understand you're arguing that there was sort of no intervening change between the time the district court looked at this issue and asked, what if there was development in California law in the time that made the error more plain? [00:49:01] Speaker 00: Is that something we could consider under Henderson? [00:49:06] Speaker 01: I think so, yes, if there had been. [00:49:09] Speaker 01: Because ultimately, I mean, sort [00:49:12] Speaker 01: We're discussing earlier the two different standards. [00:49:14] Speaker 01: They both have the word clear, but you have prong to, and then you have this other Miller v. Ganey clear. [00:49:19] Speaker 01: It's the same question. [00:49:20] Speaker 01: You have this court from California law to this court's interpretation of California law, and then you have a separate legal step to match it up under what the federal law is here. [00:49:31] Speaker 01: And so you could have a change in federal law, a la Borden, or you could have a change in California law, for example, a new Supreme Court of California case, and a court of appeal [00:49:42] Speaker 01: Court of Appeal, I think they use a singular. [00:49:44] Speaker 01: California courts, coming to different decisions, this court has said that we have to take the California Supreme Court at its word when it says this is the law of the state of California. [00:49:55] Speaker 01: But if you had a new California Supreme Court decision that undid Williams and said, no, now we are going to allow a lower standard than purpose or knowledge for 245, that would be a change in the law. [00:50:07] Speaker 01: There's no rule against that. [00:50:08] Speaker 01: We just don't have that here. [00:50:10] Speaker 04: I just want to clarify and make sure that I understand your position. [00:50:15] Speaker 04: So what you're asking the en banc panel to do is to eliminate the pure question of law exception as a plain error rule, and then you said that the panel could, if it chose to, go ahead and answer the question that bored and didn't change our prior precedent that 245 is a crime of violence, right? [00:50:35] Speaker 01: That is correct, yeah. [00:50:36] Speaker 04: So let me just ask you a question on your position on the merits. [00:50:40] Speaker 04: What do we do with the fact that Borden requires some sort of purposeful targeting of the victims and the plethora of state court cases that sustain a 245 conviction even when the defendant didn't know that the victim was present or was trying to avoid the victim? [00:51:00] Speaker 04: How do we reconcile that with respect to your merits argument? [00:51:05] Speaker 01: I think your honor that to some extent that's I would push back on the premise that there's a plethora of California cases allowing accidental conduct to qualify under 245. [00:51:15] Speaker 01: We in our petition and I don't know the [00:51:20] Speaker 01: Off the top of my head, I think it's around... Well, there are examples, right? [00:51:24] Speaker 01: There are four cases. [00:51:25] Speaker 04: 245 is a very common California state court conviction. [00:51:30] Speaker 04: And so there's going to be a range of conduct in which a 245 conviction can be sustained. [00:51:36] Speaker 04: Some involving, as you say, closer to the Begay situation with a really extreme recklessness, and then others, something less than extreme recklessness. [00:51:46] Speaker 01: I mean, we can't reinvent the wheel, but we did our best to respond to the California cases that the defense relied on and pointed out. [00:51:54] Speaker 01: So in 16 and 17 of our petition, we go through Lopez, Wyatt, Azure, one that starts with an A, Aznav, Volay, and one other case. [00:52:07] Speaker 01: and explained how all three of them are actually intentional cases. [00:52:12] Speaker 01: I'm sure, without knowing more, that there is some case somewhere in the state of California that misapplied Williams to something that this court and all of us parties here would think actually was unintentional conduct, because that's the nature of the judicial system anywhere. [00:52:29] Speaker 01: All I know is that the cases the defenses relied on in this case and cited in their brief set forth [00:52:35] Speaker 01: intentional conduct, like the Wyatt case with the father hitting his son, not intending to cause harm, but intentionally hitting his son. [00:52:44] Speaker 01: The mistake there was between knowledge and purpose. [00:52:47] Speaker 01: Those are both intentional types of conduct. [00:52:49] Speaker 01: Hitting your son, even without intending to cause harm, is still an intentional application of force. [00:52:55] Speaker 01: And I do want to come back to point this court to the Supreme Court's decisions in Greer and Davis. [00:53:00] Speaker 01: I know we cite them in our brief, but I think they're instructive. [00:53:03] Speaker 01: I actually think that sometimes people ask, what's your best case? [00:53:07] Speaker 01: Davis, the summary pur curiam decision in Davis by the Supreme Court might be our best case on this issue, because it's the mirror image of this case. [00:53:18] Speaker 01: The issue in Davis was the Fifth Circuit had created essentially the opposite rule here. [00:53:24] Speaker 01: The Fifth Circuit had said that when questions are purely factual, we're not going to apply plain error at all. [00:53:31] Speaker 01: We're not going to even hear your claim. [00:53:32] Speaker 01: You should have raised it below. [00:53:34] Speaker 01: So no plain error for you. [00:53:37] Speaker 01: And the Supreme Court on the summary calendar said no. [00:53:41] Speaker 01: Your job is to apply Rule 52B as written. [00:53:43] Speaker 01: There's no special exception for factual questions or purely factual questions that gets you out of plain error. [00:53:50] Speaker 01: It's almost exactly the mirror image of this case. [00:53:53] Speaker 01: And it was disposed of simply in a very straightforward manner. [00:53:56] Speaker 01: The Fifth Circuit doesn't get to have a special exception for questions of fact. [00:54:01] Speaker 01: No circuit, including this circuit, should have a special textless, without basis exception, for pure questions of law, for all the reasons that Judge Graber gave in her Zhao opinion. [00:54:13] Speaker 01: And as a third thing, I do want to say that this is not a rule that is administratively fair to judges and litigants across the circuit. [00:54:24] Speaker 01: There's nothing fair systematically about the idea [00:54:29] Speaker 01: that in your case you may or may not get de novo review of a claim that wasn't made below based on whether the panel in its discretion applies essentially a standardless judge-made exception to a binding rule. [00:54:43] Speaker 01: That's not fair to litigants writ large. [00:54:46] Speaker 01: And this court's job sitting en banc is to make a rule that we can, Mr. Burns and I and all the litigants in this courtroom can use in all the future cases before three judge panels, before many of you in this circuit, [00:54:58] Speaker 01: to know what the rules are and have a rule we can rely on and predictably apply to the cases that we have to deal with in our attempt to do justice in the circuit. [00:55:08] Speaker 02: Can I ask you a question about the enumeration clause of the career offender guideline where it enumerates? [00:55:15] Speaker 02: Sure. [00:55:17] Speaker 02: We've said in a prior case, and you worked with it, that aggravated assault there refers to federal generic aggravated assault. [00:55:25] Speaker 02: Why should that be true? [00:55:26] Speaker 02: The guidelines have a definition of aggravated assault. [00:55:29] Speaker 02: Why shouldn't we use the guidelines definition? [00:55:31] Speaker 02: It's a guidelines term. [00:55:32] Speaker 02: It's not from the statute. [00:55:34] Speaker 02: They added that to the guideline as a matter of their discretion in interpreting the phrase. [00:55:40] Speaker 01: I think that, and if you disagree with me, [00:55:45] Speaker 01: It is what it is, but my understanding of the Enumerated Defense Clause issue in this case is it ends up, because of this issue about California law intent, collapsing back on the 16A Use of Force Clause. [00:55:59] Speaker 01: That in other words, if the mens rea is as the defense says it is, that would undo the Enumerated Defense Analysis as well as the Rule 16A Analysis. [00:56:09] Speaker 01: Obviously, Your Honor may have a different view of that. [00:56:12] Speaker 02: You think they stand or fall together. [00:56:14] Speaker 01: I do think they stand and fall together, and that's why we're focusing on the use of the 16a elements clause analysis. [00:56:23] Speaker 02: I thought you were suggesting it was an alternative argument, but now you're saying they stand and fall together. [00:56:27] Speaker 01: We made it as an alternative argument before the panel decision because there are other issues. [00:56:33] Speaker 01: We made it as an alternative argument before the panel decision. [00:56:36] Speaker 01: I think now that we're where we are, where the issues have been sort of joined and narrowed as to this Borden, Vasquez, Gonzalez, California law issue, they end up standing or falling together. [00:56:48] Speaker 01: And also with respect, just to address one issue that you brought up. [00:56:51] Speaker 01: The government does agree at this point that the Borden plurality with Justice Thomas' join is the controlling opinion. [00:57:00] Speaker 01: That's what this court said in Begay. [00:57:02] Speaker 01: This court used that in Begay. [00:57:04] Speaker 01: And also, I understand there's some ambiguity in how the Marx rule applies, but if it's use of force on one hand... Because Marx, you normally take part of the rationale that overlaps, and there is no overlaps. [00:57:14] Speaker 01: I thought about this when preparing for this argument. [00:57:17] Speaker 01: The Borden plurality says use of force against another. [00:57:21] Speaker 01: and in talks most of the time about against another. [00:57:23] Speaker 01: But the phrase only means something if you take the whole phrase, use of force against another. [00:57:27] Speaker 01: Justice Thomas said, no, no, you don't need the against another part. [00:57:30] Speaker 01: Use of force is enough. [00:57:32] Speaker 01: Applying the Marx rule to that, the plurality is a logical subset. [00:57:37] Speaker 01: And also, that's what this court already held in its unblocked decision in the game. [00:57:40] Speaker 01: And again, we don't shy away from Borden because Borden [00:57:45] Speaker 01: is completely consistent with this court's case law. [00:57:47] Speaker 01: And on the merits, we think that's the right outcome as well. [00:57:50] Speaker 01: But we do primarily ask this court to give us a plain error rule, to give the parties, frankly, sometimes the government is appellant, a plain error rule that is clear and grounded in the text and administrable in all the future cases in this circuit. [00:58:07] Speaker 01: Are there no more questions? [00:58:08] Speaker 01: Thank you, Ernest. [00:58:17] Speaker 08: I'd like to start with some questions that Judge Koh was asking about. [00:58:21] Speaker 08: I'm not sure where government counsel came out on this, but with respect to the relationship between the clearly irreconcilable analysis and the second prong of Alano's test, I submit that the clearly irreconcilable analysis comes at the first prong. [00:58:36] Speaker 08: Is there error? [00:58:37] Speaker 08: You have to decide if Supreme Court case law is clearly irreconcilable with prior Ninth Circuit case law to decide if there's error. [00:58:44] Speaker 08: And then it just so happens in cases where you do that, if you've gone through that process, the second prong is already solved. [00:58:52] Speaker 08: The error is clear. [00:58:53] Speaker 08: There's no daylight between clearly irreconcilable and clear plain error, and the government has never pointed to any. [00:59:01] Speaker 08: Regarding a question that Judge Merguia asked about, and I think it also goes back to something that Judge Collins was asking me about, [00:59:08] Speaker 08: Did Borden just say, look, it's got to be more than reckless, or was there something more to it? [00:59:15] Speaker 08: I'd submit that the primary holding of Borden was the statutory construction, that there must be targeting. [00:59:21] Speaker 08: And then targeting informed that reckless isn't enough. [00:59:24] Speaker 08: But it's the targeting holding that is key. [00:59:28] Speaker 08: And it's obvious under California case law that targeting is just not required. [00:59:32] Speaker 02: But now you're making it sound like intent. [00:59:34] Speaker 02: And that's, Borden says it can be intent or knowledge. [00:59:39] Speaker 02: Because knowledge may, I know I'm going to hit him, but I may not be targeting him in the purposeful sense. [00:59:46] Speaker 08: Well, Borden says knowledge or purpose, and it says, look, in most cases, there's probably no distinction. [00:59:52] Speaker 08: Because at the lower level of knowledge, you're trying to make a getaway, the getaway driver's driving, and there's someone in his way. [01:00:00] Speaker 08: He's going to run that person down. [01:00:01] Speaker 08: Now, it's not like the reviled neighbor that he wants to run down, but he's going to run him down. [01:00:06] Speaker 08: He knows it's practically certainly he's going to hit that person. [01:00:08] Speaker 08: He's targeting his car at that person. [01:00:10] Speaker 08: So they're almost indistinguishable, as the Supreme Court indicated, except maybe when intoxication defense is allowed for or not allowed. [01:00:20] Speaker 02: But in California, where you have to know the facts that are likely to result in hitting him. [01:00:27] Speaker 02: So every reasonable person looking at this knows, if I do this, I'm going to run this guy down. [01:00:32] Speaker 02: But I pretend I don't know he's going to go. [01:00:35] Speaker 08: But California case law makes clear you don't have to know that, for example, the person is there. [01:00:43] Speaker 08: Because there's a number of cases that say that, including Cook. [01:00:47] Speaker 08: Flanagan and Drennan, you have to know what your conduct, the nature of your conduct is, what you're doing, but you don't have to know the person's there. [01:00:54] Speaker 08: But furthermore, you can be, if you do know the person's there, you can try to be avoiding them, which is not targeting. [01:01:00] Speaker 08: And again, there are a number of cases that say that. [01:01:02] Speaker 08: Inray, L.J., Sewell, Tucker, a case from this court in 1983 context, Barrett, [01:01:08] Speaker 08: where a person is trying to avoid a police officer and back up and runs over their foot. [01:01:12] Speaker 08: I mean, the cases are legion. [01:01:13] Speaker 08: And the fundamental problem is that the prior analysis of these has just, it's been too simplistic. [01:01:19] Speaker 08: It said, look, William says more than reckless. [01:01:21] Speaker 08: And Fernandez-Ruiz says more than reckless, so there's nothing to see here. [01:01:25] Speaker 08: But Williams makes crystal clear in his footnote when it says more than reckless, it is not referring to the modern conception of recklessness, meaning a substantial knowledge of a substantial and unjustifiable risk. [01:01:35] Speaker 08: It is referring to criminal negligence. [01:01:37] Speaker 08: It couldn't be any more clear. [01:01:39] Speaker 08: And Williams doesn't apply the model penal code definition. [01:01:42] Speaker 08: And it also says in another footnote, a person who is honestly [01:01:46] Speaker 08: believes that they're not going to apply force is guilty. [01:01:49] Speaker 08: Now, there's a lot of muddled language in there, but that language is crystal clear. [01:01:53] Speaker 08: And how the courts have applied it is crystal clear. [01:01:55] Speaker 08: It sweeps up a whole lot of conduct that is not violent in nature, as the Supreme Court defined it in Borden. [01:02:05] Speaker 05: Thank you very much. [01:02:06] Speaker 05: Appreciate it. [01:02:08] Speaker 05: Mr. Burns, Mr. Robbins, thank you for your oral argument presentations here today. [01:02:12] Speaker 05: The case of United States versus Gomez is now submitted and we are adjourned. [01:02:17] Speaker 05: Thank you.